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India's top court to review ban on gay sex

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Indian members and supporters of the lesbian, gay, bisexual, transgender (LGBT) community hold placards as they walk underneath a rainbow flag during a Gay Pride Parade in New Delhi on November 30,2014. Photo by Sajjad Hussain/AFP

NEW DELHI, India (UPDATED) – India's top court agreed Tuesday, February 2, to review a law outlawing gay sex, sparking hope among campaigners that the legislation dating back to the 19th century will eventually be overturned in the world's biggest democracy.

The Supreme Court's three most senior judges accepted a challenge against a 2013 reimposition of the ban stipulated in India's colonial-era criminal code, which enables the jailing of homosexuals.

"We believe that it is an important issue and it must be referred to a constitutional bench," Chief Justice T.S. Thakur told the court.

"We are going to constitute a bench of five judges which will now hear this matter."

Members of the gay community, some wearing rainbow-colored scarves, clapped, hugged and cheered outside the court in New Delhi, echoing cautious celebrations held in other cities in India.

"This is the first step in the right direction. It's still a long way from here but definitely we are moving in the right direction," said gay activist Manish Malhotra.

Fellow activist Dhrubo Jyoti said the community had feared that the judges would dismiss the appeal outright, adding: "We are hopeful that the honorable judges will now look into it and uphold our constitutional rights."

The decision is the latest chapter in a long-running legal battle between India's social and religious conservatives and the gay community over the law passed by British colonial rulers in the 1860s.

Six years ago the Delhi High Court effectively legalized gay sex in a landmark ruling – that the ban infringed the fundamental rights of Indians.

That 2009 ruling emboldened the still largely closeted gay community, which started to campaign publicly against widespread discrimination and violence.

But the Supreme Court reinstated the ban in 2013, saying responsibility for changing the law rested with lawmakers and not the courts.

Members of the gay community and campaigners lodged the last-ditch curative petition – or special appeal – to the Supreme Court to have the 2013 judgement reviewed.

Prosecutions for gay sex are rare, but activists say corrupt police use the reimposed law to harass and threaten homosexuals. The gay community says criminalizing homosexuality makes its members vulnerable to blackmail.

Gay sex has long been a taboo subject in conservative India, where homophobic tendencies abound and some still regard homosexuality as a mental illness.

A lawmaker's attempt to introduce a private member's bill into parliament to decriminalize gay sex failed in December.

In the eastern city of Kolkata, activists carrying placards that read "Love is not a crime" erupted in song in celebration at Tuesday's decision, optimistic that the court would eventually strike down the ban.

"It (the decision) reinstates that democracy prevails and right to freedom of expression and right to a life of dignity is there," prominent transgender activist Laxmi Tripathi told the NDTV network.

"We welcome the Supreme Court's decision... to take it further."

The court introduced such "curative" appeals in 2002 as a final way for judgements to be reexamined. But very few judgements reviewed have been overturned and petitions can be dismissed outright without a hearing. Abhaya Srivastava, AFP/Rappler.com

 


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